UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DAVID JELEB GOLDBERG, 

 Defendant - Appellant. 

No. 20-6090 

(D.C. No. 5:19-CR-00218-HE-1) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. 

_________________________________ 

 David Jeleb Goldberg appeals from his conviction for possessing cocaine with 

intent to distribute and his sentence of 72 months’ imprisonment. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

BACKGROUND 

 On June 29, 2019, an Oklahoma state trooper stopped Goldberg for traffic 

violations on I-40. While the trooper was writing a warning, another trooper brought 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 15, 2021

Christopher M. Wolpert 

Clerk of Court
2 

a certified drug-sniffing dog, Stormy, to the scene. While walking Stormy around 

Goldberg’s vehicle, the handler saw that she “slowed down, became more methodical 

around the passenger side rear hatch of the vehicle.” R. Vol. III at 68. He also 

“noticed when we got to the passenger side front door, the window was down and she 

sticks her nose up there and actually hops up, puts her paws up on the vehicle and 

moves her head back and forth. And then she gets off of the vehicle and just stands 

still and freezes.” Id. Interpreting her behavior as an alert, the troopers searched the 

vehicle, uncovering two kilo-sized bricks of cocaine. 

 Goldberg moved to suppress the evidence of the cocaine on several grounds. 

As relevant to this appeal, while recognizing that “a positive dog alert gives officers 

probable cause to search,” United States v. Parada, 577 F.3d 1275, 1281 (10th Cir. 

2009), he disputed whether Stormy’s behavior amounted to an alert. At an 

evidentiary hearing, Stormy’s handler testified that she was trained to sit if “she can 

go directly to the source” of the odor. R. Vol. III at 66. But if she cannot go directly 

to the source, she may exhibit “a change of behavior, which is anything other than a 

normal pattern.” Id. The trooper testified that even though she did not sit, Stormy’s 

behavior around the passenger side of the vehicle constituted an alert. 

 Crediting the trooper’s testimony, the district court found that Stormy’s 

behavior was an alert. “[W]e’re talking about training a team where they are trained 

to work with each other and, obviously, the officer’s ability to discern changes in the 

behavior of the dog is more attuned to the dog’s training and nature than anything 

one of us looking at it from a distance might do.” Id. at 92. Accordingly, the court 
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held that probable cause supported the search leading to the cocaine, and it denied the 

motion to suppress. 

 Goldberg accepted a plea agreement and pleaded guilty to one count of 

possessing 500 grams or more of cocaine with intent to distribute in violation of 

21 U.S.C. § 841(a)(1). Because the violation of § 841(a)(1) carried a mandatory 

five-year minimum, see id. § 841(b)(1)(B), the Sentencing Guidelines range of 46 to 

57 months became 60 months. The district court, however, granted the government’s 

motion for an upward variance and sentenced Goldberg to 72 months’ imprisonment. 

 Goldberg now appeals. 

DISCUSSION 

I. Motion to Suppress 

 Goldberg first argues that the district court erred in denying his motion to 

suppress, an issue his plea agreement preserved for appeal. Viewing the evidence in 

the light most favorable to the government, we review the district court’s factual 

findings for clear error and the legal question of reasonableness under the Fourth 

Amendment de novo. United States v. Castorena-Jaime, 285 F.3d 916, 924 

(10th Cir. 2002). 

 Goldberg challenges the conclusion that Stormy’s behavior established 

probable cause. He argues that Stormy did not indicate she smelled drugs in the 

manner in which she was trained—sitting—and that her handler’s interpretation of a 

change in behavior is insufficient to constitute an alert. It is unclear whether 

Goldberg intends this argument (1) to challenge the district court’s factual finding 
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that Stormy’s behavior constituted an alert, (2) to urge this court to hold, as a matter 

of law, that only a dog’s trained signal of final indication can establish probable 

cause, or (3) both. But however he intends the argument, it fails. 

 To the extent that Goldberg brings a factual challenge, he must establish that 

the district court clearly erred. See Parada, 577 F.3d at 1281. “A finding is ‘clearly 

erroneous’ when although there is evidence to support it, the reviewing court on the 

entire evidence is left with the definite and firm conviction that a mistake has been 

committed.” Castorena-Jaime, 285 F.3d at 924 (brackets and internal quotation 

marks omitted). Goldberg has not satisfied this standard. The district court was 

entitled to credit the handler’s testimony that Stormy’s behavior changed and that the 

change of behavior served as an alert. See United States v. Moore, 795 F.3d 1224, 

1231 (10th Cir. 2015) (concluding that finding of alert, supported by handler’s 

testimony about change of behavior, was not clearly erroneous); Parada, 577 F.3d at 

1279, 1281 (same). 

 To the extent that Goldberg brings a legal challenge, this court has held that an 

alert, as opposed to a final indication, is sufficient to establish probable cause. 

See Moore, 795 F.3d at 1232 (“We have held that an alert, or a change in a dog’s 

behavior in reaction to the odor of drugs, is sufficient to establish probable cause to 

search a vehicle, and that a final indication is not necessary.”); Parada, 577 F.3d at 

1282 (“[T]he general rule we have followed is that a dog’s alert to the presence of 

contraband is sufficient to provide probable cause. We decline to adopt the stricter 

rule urged by Mr. Parada, which would require the dog to give a final indication 
5 

before probable cause is established.”). “[I]t is almost axiomatic that one panel of 

this court cannot overrule another panel.” Parada, 577 F.3d at 1280 (internal 

quotation marks omitted). We therefore reject Goldberg’s request to hold, as a 

matter of law, that Stormy’s alert was not sufficient to establish probable cause to 

search his vehicle. 

II. Reasonableness of Sentence 

 Goldberg next argues that this sentence was both procedurally and 

substantively unreasonable. 

A. Procedural Reasonableness 

 Goldberg’s plea agreement waived “the right to appeal [his] sentence as 

imposed by the Court, including any restitution, and the manner in which the 

sentence is determined.” R. Vol. I at 63. The government argues that this waiver 

bars his arguments about procedural unreasonableness. In considering whether to 

enforce an appeal waiver, we examine “(1) whether the disputed appeal falls within 

the scope of the waiver of appellate rights; (2) whether the defendant knowingly and 

voluntarily waived his appellate rights; and (3) whether enforcing the waiver would 

result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325 

(10th Cir. 2004) (en banc) (per curiam). Enforcing an appeal waiver results in a 

miscarriage of justice when (1) “the district court relied on an impermissible factor 

such as race,” (2) “ineffective assistance of counsel in connection with the 

negotiation of the waiver renders the waiver invalid,” (3) “the sentence exceeds the 
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statutory maximum,” or (4) “the waiver is otherwise unlawful.” Id. at 1327 (internal 

quotation marks omitted). 

 “Procedural reasonableness addresses whether the district court incorrectly 

calculated the Guidelines sentence, treated the Guidelines as mandatory, failed to 

consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to 

adequately explain the sentence.” United States v. Haggerty, 731 F.3d 1094, 1098 

(10th Cir. 2013) (ellipsis and internal quotation marks omitted). We are satisfied that 

in this case the broad scope of the appeal waiver encompasses these arguments. 

Moreover, both the plea agreement and the plea colloquy support the conclusion that 

Goldberg knowingly and voluntarily accepted the waiver. And the record does not 

indicate that enforcing the waiver would result in a miscarriage of justice, as that 

term is defined by Hahn, 359 F.3d at 1327. We therefore enforce the appeal waiver 

and decline to consider arguments that bear solely upon procedural reasonableness. 

B. Substantive Reasonableness 

 In contrast, the waiver reserved Mr. Goldberg’s right to appeal the substantive 

reasonableness of his sentence “[i]f the sentence is above the advisory Guidelines 

range determined by the Court to apply to [his] case.” R. Vol. I at 63. This 

exception applies here because of the upward variance. We review substantive 

reasonableness for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). 

“Applying this standard, we give substantial deference to the district court and will 

only overturn a sentence that is arbitrary, capricious, whimsical, or manifestly 
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unreasonable.” United States v. Peña, 963 F.3d 1016, 1024 (10th Cir. 2020) (internal 

quotation marks omitted), cert. denied, 208 L. Ed. 2d 559 (U.S. 2021). 

 “Substantive reasonableness involves whether the length of the sentence is 

reasonable given all the circumstances of the case in light of the factors set forth in 

18 U.S.C. § 3553(a).” Id. (internal quotation marks omitted). “When conducting this 

review, the court will, of course, take into account the totality of the circumstances, 

including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 

51. Mere disagreement with the weight the district court gave various factors does 

not establish that a sentence is substantively unreasonable. See Peña, 963 F.3d at 

1025, 1026; see also Gall, 552 U.S. at 51 (stating that the appellate court must “give 

due deference to the district court’s decision that the § 3553(a) factors, on a whole, 

justify the extent of the variance”). 

The district court highlighted that (1) this drug offense was substantially 

similar to Goldberg’s prior felony conviction, and (2) he committed this offense soon 

after being released from incarceration on the prior offense. Goldberg asserts that 

both of these reasons implicate § 3553(a)(2), which requires the court to consider the 

“basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, 

(c) incapacitation, and (d) rehabilitation,” United States v. Walker, 844 F.3d 1253, 

1256 (10th Cir. 2017) (internal quotation marks omitted). He argues that the district 

court thereby unduly weighed that factor, to the exclusion of the other § 3553(a) 

factors. After examining all the circumstances, however, we are not persuaded that 
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the district court’s 12-month upward variance was arbitrary, capricious, whimsical, 

or manifestly unreasonable. 

In 2012, Goldberg was convicted of conspiracy to distribute heroin and 

received a 60-month sentence. Less than a year after being released, he violated his 

supervised release and was sentenced to ten months’ additional incarceration. He 

was released from that incarceration in April 2018, but just over a year later, he 

committed the instant offense. The district court permissibly considered that the 

instant offense’s similarity and proximity to the previous offense showed a troubling 

recidivist tendency. See United States v. Singer, 825 F.3d 1151, 1160 (10th Cir. 

2016); see also United States v. Franklin-El, 554 F.3d 903, 913 (10th Cir. 2009). 

 Moreover, contrary to the assertion that the district court focused only on 

§ 3553(a)(2), the information about the prior conviction also implicated § 3553(a)(1), 

which requires the district court to consider “the nature and circumstances of the 

offense and the history and characteristics of the defendant.” See Singer, 825 F.3d at 

1160. The district court further explicitly considered Goldberg’s history and 

characteristics in setting the length of the variance. The court explained that it had 

considered a greater variance, but settled on 12 months in part due to crediting 

Goldberg’s allocution statement that the recent birth of his first child had helped 

mature and change him. “I do . . . credit the defendant’s explanation that – or the 

defendant’s assurance essentially that he’s learned his lesson and will hopefully 

move in a different direction now that he does have family responsibilities that he 

didn’t have before.” R. Vol. III at 110. 
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CONCLUSION 

 The district court’s judgment is affirmed. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge